ASIAN POWER CONTROLS LTD Vs. BUBBLES GOYAL

JUDGEMENT

(1.) These Appeals arise from orders of the learned Company Judge initially admitting a Company Petition for winding up on 12 March 2012 and allowing the Petition by an order dated 21 June 2012.

(2.) The Respondent advanced a loan in the amount of Rs.50 lakhs to the Appellant by a cheque dated 5 August 2008. A loan agreement was entered into between the company and the Respondent. A promissory note dated 5 August 2008 was executed by the Appellant agreeing to re-pay the loan of Rs.50 lakhs together with interest. The company, as security for the re-payment of the loan, pledged the title deeds of certain immovable property belonging to it and situate at Pondicherry with the Respondent. A post-dated cheque in the amount of Rs.50 lakhs was issued in favour of the Respondent. Six post-dated cheques each in the amount of Rs.1,33,005/- towards interest payable on the loan were honoured on presentation. Interest on the loan was paid until October 2009. On 14 August 2009 the company addressed a letter to the Respondent seeking an extension of time to repay the loan until 25 December 2009. A post-dated cheque dated 25 December 2009 in the amount of Rs.50 lakhs was handed over. The cheque was deposited on 9 April 2010, but was returned by the bankers of the company on the ground that funds were insufficient.

(3.) A statutory notice of winding up was addressed to the company on 1 May 2010. In a reply dated 13 May 2010, the company contended that it was not liable to pay any amount inter alia on the ground that the Respondent did not hold a licence from the Reserve Bank and the documents were fabricated. A Petition for winding up was filed before the Company Court on the ground that the company was unable to pay its debts. An affidavit opposing admission was filed on 13 April 2011 contending that since the Respondent was a secured creditor, a Company Petition for winding up at its behest was not maintainable. This defence was rejected by the Company Judge, while relying upon a judgement of a Division Bench of this Court in Bharat Overseas Bank Ltd. v. Shree Arcee Steels P. Ltd., 1985 58 CompCas 174. The Division Bench had held in that case, relying upon judgements of the Madras and Calcutta High Courts, that a Company Petition for winding up could not be dismissed at the stage of admission on the ground that the debt was secured. The Company Petition was admitted and advertised.